Florida appealed to the 11th U.S. Circuit Court of Appeals a June 30 decision by U.S. District Court in Tallahassee to freeze the state’s law regulating social media. Florida filed a notice of appeal Tuesday at the lower court (case 4:21-cv-00220-RH-MAF). Gov. Ron DeSantis (R) pledged to continue the case (see 2107010055). NetChoice, one of the internet industry groups that sued, expects the appeals court to uphold the preliminary injunction, said a spokesperson. “We look forward to solidifying these important findings across the entire 11th Circuit." While Florida "is within its rights to appeal, its continued defense of a law that the district court concluded was clearly unconstitutional simply wastes taxpayers' dollars," said Computer and Communications Industry Association President Matt Schruers. A similar Texas bill up for consideration in a special session (see 2107080012) met another roadblock this week as Democratic state senators exited the state Monday to prevent a quorum on a different bill.

Ex-President Donald Trump’s complaints against Facebook, Google and Twitter (see 2107070065) aren’t “frivolous,” said Free State Foundation President Randolph May. He noted Trump’s argument Wednesday that Communications Decency Act Section 230 immunity “amounts to a delegation of authority by Congress that facilitates the companies’ censorship actions.” If correct, Big Tech companies can’t censor posts, May said, though he’s “not convinced at this point that Section 230’s grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors.” It’s possible discovery “could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took,” he added.

Vivint intends to “vigorously defend” against ADT allegations that its SkyControl panel and Smart Hub violate patents 8,976,937 and 9,286,772 belonging to ADT, it said Wednesday, after ADT filed a complaint (in Pacer) in the U.S. District Court for the Western District of Texas Tuesday. ADT also filed a companion case with the International Trade Commission. “Vivint launched its SkyControl Panel and related products with the express desire, in the words of its former CEO, to ‘control anything and everything inside the home,’” said ADT Chief Legal Officer David Smail in a statement: “Apparently Vivint also meant ‘by any means necessary.’” Vivint infringes ADT patents covering predictive analytics, detection and diagnostics, and advanced user interfaces including voice control, Smail said, “to gain an unfair advantage in the smart home security and automation market.” By defending its patents, “ADT is determined to protect its employees, its customers, its products, and its reputation,” he said. ADT asked the ITC for an exclusion order prohibiting Vivint from importing products that allegedly infringe on its patents, and asked the court for a finding of infringement plus damages, fees and other relief. Vivint believes the claims asserted are “completely without merit and that the complaint is a reactionary countersuit” to a patent infringement complaint Vivint filed in February against ADT in the U.S. District Court for the District of Utah asserting ADT infringed six Vivint patents. That case is ongoing.

Lecrew Licensing filed a complaint in the U.S. District Court in Wilmington, Delaware, Tuesday against Sonos for allegedly infringing patent 9,516,370, titled “Method, device, and system for directing a wireless speaker from a mobile phone to receive and render a playlist from a content server on the internet.” The patent is based on a 2014 filing listing Martin Weel, Modjeska, California, as inventor and Black Hills Media as assignee. The complaint (in Pacer) identifies Sonos’ Roam portable speaker, saying “the accused system supports a display (e.g., display of the smartphone in which app of the accused system is installed)" for displaying, on a touch screen of the mobile phone, device identifiers such as icons of paired devices, such as speakers in a dining room or kitchen, for multiple speakers. The complaint seeks a judgment that the patent is valid and enforceable, that Sonos infringed one or more claims, and damages and attorney fees. Sonos didn't comment Wednesday.

The FTC’s antitrust complaint against Facebook is “legally insufficient and must therefore be dismissed,” U.S. District Judge James Boasberg ruled Monday in FTC v. Facebook (20-3590, in Pacer) (see 2012090062). The agency offered a defective case that could “conceivably be overcome by re-pleading,” Boasberg wrote, dismissing the complaint before the U.S. District Court for the District of Columbia. The agency failed to “plead enough facts to plausibly establish a necessary element of all of its Section 2 claims -- namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services,” he wrote. The FTC claimed in the complaint that the company has a dominant market share higher than 60%. The agency was unable to offer metrics or methods it used to “calculate Facebook’s market share,” which “renders its vague ‘60%-plus’ assertion too speculative and conclusory to go forward,” Boasberg wrote. He also dismissed New York’s case against Facebook in a separate motion (20-3589, in Pacer). Facebook is "pleased that today’s decisions recognize the defects in the government complaints filed against Facebook," said the company in a statement. "We compete fairly every day to earn people’s time and attention and will continue to deliver great products for the people and businesses that use our services.” The office for New York Attorney General Letitia James is "reviewing this decision and considering our legal options," a spokesperson said. The FTC didn’t comment. Sen. Josh Hawley, R-Mo., called it a “deeply disappointing” decision from the court, which “acknowledged” Facebook’s “massive market power but essentially shrugged its shoulders.”

Florida’s social media law doesn’t “regulate the ‘conduct’ of ‘common carriers’ or impose only ‘incidental’ burdens on speech,” NetChoice and the Computer and Communications Industry Association replied (in Pacer) Friday to Florida at U.S. District Court in Tallahassee. The state defended its law earlier last week as not unlike common carrier regulation (see 2106220030). The contested state law “overrides online services’ protected editorial judgments, interfering with the messages those judgments express and making the State the ultimate arbiter of private companies’ speech,” the internet industry groups said. “Florida cannot mandate such ‘enforced access’ -- even in the name of ‘enhanc[ing]’ speech, promoting ‘fairness,’ or addressing supposedly ‘vast accumulations of unreviewable power in the modern media empires.’” Virtual oral argument is Monday at 1:30 p.m. Judge Robert Hinkle said he plans to rule on preliminary injunction by end-of-day June 30.

Regulating how powerful social media companies control user content is “little different from traditional common carrier regulation long thought to be constitutionally permissible,” said Florida Monday at U.S. District Court in Tallahassee. The state opposed internet industry groups’ motion for preliminary injunction, arguing that Communications Decency Act Section 230 doesn’t preempt Florida from regulating networks that censor free speech: Plaintiffs may say sites are businesses not subject to the First Amendment, but if “Section 230 creates a broad law-free zone in which internet companies can censor however they like, even in bad faith, then serious questions would arise about whether their censorship constitutes state action.” Even if the court disagrees social networks are state actors, “there is nevertheless state action to whatever extent Section 230 preempts Florida law,” argued Florida, citing a 1956 Supreme Court case, Railway Employees’ Department v. Hanson. The Supreme Court, in 2006’s Rumsfeld v. FAIR and 1980’s PruneYard Shopping Center v. Robins, said the First Amendment gives government wide latitude to regulate, Florida said. A footnote responded to plaintiffs’ incredulity about the law exempting companies that own Florida theme parks, which could include Disney and Comcast. It “only applies to a handful of entities, none of which operates a social media platform of significant size,” Florida said. “The narrow exception survives intermediate scrutiny, and in any event should be severed from the rest of the Act if the Court deems it unconstitutional.” Virtual oral argument is June 28 at 1:30 p.m. Judge Robert Hinkle said he plans to rule on preliminary injunction by end-of-day June 30 (see 2106100059). The court received amicus briefs opposing the state law last week, including from the Internet Association, Electronic Frontier Foundation, American Civil Liberties Union and TechFreedom. It might seem “counterintuitive,” but “the answer to Florida lawmakers’ concerns ... is to preserve the constitutional status quo,” wrote EFF. The law vests Florida “with the pure power of the censor,” said ACLU and press and writer groups. Common carriage rules may not be applied to social media, said TechFreedom.

Patent Trial and Appeal Board judges are unconstitutionally appointed, and granting the Patent and Trademark Office director more discretion to review PTAB decisions would cure the problem, the Supreme Court ruled Monday in U.S. v. Arthrex (19-1434). The Constitution “forbids the enforcement of statutory restrictions on the Director that insulate the decisions of [administrative patent judges] APJs from his direction and supervision,” Chief Justice John Roberts wrote for the majority. “To be clear, the Director need not review every decision of the PTAB. What matters is that the Director have the discretion to review decisions rendered by APJs.” Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Roberts in the majority opinion on parts I and II. Alito, Kavanaugh and Barrett joined Roberts for an opinion on part III. Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Clarence Thomas and Gorsuch dissented to varying degrees. Gorsuch filed an opinion concurring in part and dissenting in part. Breyer filed an opinion concurring in the judgment in part and dissenting in part, with Sotomayor and Kagan joining. Thomas filed a dissenting opinion with Breyer, Sotomayor and Kagan joining for parts I and II. The high court ruled the appointments unconstitutional on the question of whether the authority of APJs to “issue decisions on behalf of the Executive Branch is consistent with the Appointments Clause of the Constitution.” Arthrex argued “APJs were principal officers who must be appointed by the President with the advice and consent of the Senate, and that their appointment by the Secretary of Commerce was therefore unconstitutional,” according to the filing. Computer & Communications Industry Association Patent Counsel Josh Landau disagreed that “PTAB judges were not already subject to sufficient supervision by the Director” but welcomed the court’s “simple, common-sense revision that provides for Director review.” DOJ and an attorney for the company didn’t comment.

Louisiana asked to join Texas and nine other states’ antitrust lawsuit against Google in U.S. District Court in Sherman, Texas (see 2012160059). Louisiana filed the motion (in Pacer) Thursday.

Opposing sides in the Section 301 litigation sparred heatedly in the closing minutes of oral argument Thursday (see 2106170047) about the role the plaintiffs’ steering committee should play should the U.S. Court of International Trade grant the motion of sample-case plaintiffs HMTX and Jasco for a preliminary injunction to freeze the liquidations of unliquidated customs entries from China with Lists 3 and 4A tariff exposure. DOJ’s May 14 “alternative proposed order” would require the steering committee to furnish the government a spreadsheet with the import data that Customs and Border Protection would need to suspend liquidations, and to update it every 30 days (see 2105160001). “The government proposes having the steering committee play a role that it never volunteered to take on,” said Matthew Nicely, Akin Gump’s lead HMTX-Jasco lawyer. “It was never this court’s intention to have the steering committee do the government’s job, which is exactly what the government proposes.” DOJ’s proposal “is simply untenable,” he said. The government tried to “think of any possible way to make this process easier,” responded DOJ trial attorney Jamie Shookman of the rationale for proposing the steering committee role. “One that seemed sort of easy to take on and manageable by plaintiffs was this first step of compiling the importers and the information CBP would need to suspend their entries.” CBP is staring at the possibility of processing “thousands” of suspension requests, much of that by hand, if the court grants the injunction, she said. Nicely replied that “the amount of work here” is of DOJ’s “own making” for refusing to support a refund stipulation if plaintiffs win the litigation, as DOJ has done in previous cases. The government “undertook an unlawful imposition of Section 301 duties on a massive amount of trade,” he said. “That was not the plaintiffs who did that. That was the government who did that, so now they’re in a position of having to defend it.”